DAYALI DEVI Vs. J M MITRA CAPTAIN

JUDGEMENT

(1.) SUIT No. 31 of 1958, giving rise to this appeal, was instituted on February 1, 1957 by Dr. J. N. Mitra, in his capacity as the executor of the will of Sham-sher Singh dated 14th July, 1944, against Smt Dayali Devi, widow of the said testa tor. Shamsher Singh died issueless on January 20, 1946. Under the will, Smt Dayali Devi was given a right of residence and a life interest in the income from the estate, the management of which was vested in and entrusted to Dr. Mitra, the executor, and after her death the entire estate was to be given to the trustees of the Ram Krishna Mission, Kankhal, Hardwar in trust for founding and maintaining a hospital. The relief sought in the suit was for possession of the properties mentioned in the Schedule appended to the plaint, subject to the rights and Interests of Dayali Devi therein. Sham sher Singh's sister, Smt. Dewa Devi was impleaded as defendant No. 2 at her own instance and in pursuance of an application made by her. The suit after contest by both the defendants was decreed in toto by the trial court by judgment and decree dated March 27, 1963. The instant appeal was filed by Dayali Devi alone against the plain tiff, in which Deva Devi was arrayed as defendant- respondent No. 2.

(2.) DEVA Devi filed an application for permission to file an appeal in forma pauperis. This application was dismissed on 18-9-1963 and the memorandum of ap peal was returned to her under Section 4 of the Court Fees Act by an order dated 17-4-1964. Subsequently she filed a cross-objection which too was dismissed on 24-4-1964 on the grounds that it was barred by limitation and that it was also not legally maintainable. She had also applied for re view of the judgment of the trial Court, hut her application was dismissed on 18-10-1965. All these orders became final and Deva Devi was left with no legal right to challenge or question the decree passed by the trial court against her individually. It may be mentioned here that in her written statement, she (vide paragraphs 31, 37 and 38 of the additional pleas) had specifically pleaded that under the will of her father Dr. Chandan Singh she became entitled to all the properties in suit to the exclusion of all other persons on the death of her bro ther Shamsher Singh and that she was in possession of the same in her own indepen dent right and was entitled to so remain in possession. These pleas were repelled by the court below and the suit was decreed for possession against both the defendants.

(3.) DAYALI Devi died on 10-11-1968. Thereupon the application under Order XX, Rule 3, C.P.C. was filed praying that her name be struck off and in her place the names of Sri S. N. Mathur and four other persons, alleged to be legatees under her will dated 8-11-1968, be substituted as her legal representatives. A true copy of the alleged will was annexed to the affidavit fil ed in support of the application. The ap plication was contested and the alleged wiH was denied. This application was disposed of by an order dated 4-8-72 and the names of four persons were ordered to be substi tuted in place of Dayali Devi, only on the footing that even as intermeddlers they would be legal representatives under Section 2 (11) of the Code of Civil Procedure. One person was ordered to be arrayed as pro-forma respondent because he objected to his being substituted as a co-appellant. It may be mentioned that in the copy of the alleged wfll no mention at all was made how and in what capacity Dayali Devi came to own and possess the properties in suit nor was there any mention of any will of Deva Devi in her favour. A mention, however, was made that she had no neat relation or heir.